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2022.08.26 Code Interpretation - Electrified Fence Setbacks FORMAL CODE INTERPRETATION DATE: August 26, 2022 TO: Interpretation Notebook FROM: Brian Davis, Director of Community Development Keith Niven, Planning Manager SUBJECT: Interpretation #22-01, City File No. 22-102883-AD Determining Whether Setbacks Contained in Federal Way Revised Code Applicable to Fences Over Six Feet in Height Apply to Electrified Fences I. BACKGROUND AND INTRODUCTION AMAROK, LLC (“Amarok” or “Applicant”) requests the City of Federal Way interpret newly-amended Federal Way Revised Code (“FWRC”) 19.125.130 to exempt electrified fences of all heights from compliance with standard setbacks applicable to fences over six feet high. As explained in detail below, under the plain language of the operative provisions, property setbacks generally applicable to fences over six feet high are also applicable to electrified fences over six feet high, unless the electrified fences separate agricultural uses and are intended to contain large domestic animals. Nothing in newly-amended FWRC 19.125.130 suggests otherwise because the provisions in that section are complementary regulations governing different aspects of electrified fence regulation, and do not conflict with general regulation of fence setbacks in FWRC. As a result, electrified fences over six feet high are not exempt from compliance with standard fence setbacks under the FWRC unless they separate agricultural uses and are intended to contain large domestic animals. A. City of Federal Way Ordinance No. 22-932. On May 3, 2022, the City Council (“Council”) of the City of Federal Way (“City”) passed Ordinance No. 22-932 (“Ordinance”), which amended various sections of the Federal Way 2 Revised Code.1 Relevant to this code interpretation, the Ordinance amended existing electrified fence regulations in Chapter 19.125 FWRC as follows: 19.125.130 Electrified fences. Electrified fences are not permitted in the city, except to contain large domestic animalsas specifically permitted by this Chapter. All electric fences and appliances, equipment and materials used in connection with an electrified fence must be listed or labeled by a qualified testing agency and shall be installed in accordance with manufacturer’s specifications. All electric fences shall be posted with permanent signs, which are a minimum of 36 square inches in area, at intervals of 15 feet along the fence stating that the fence is electrified. The permitted location of and standards for electrified fences are is as follows: (1) Electrified fences separating agricultural uses and intended to contain large domestic animals may be located anywhere on the subject property, including on the property line. (2) Electrified fences in the Commercial Enterprise (CE) zone are permitted only in conjunction with the following uses: Manufacturing and production, general; Warehouse – Distribution – Storage facilities – Truck stops – Automotive emissions testing facilities; Hazardous waste treatment and storage, Chemical manufacturing – Gravel batch plant – Transfer station; Vehicle, boat, equipment, and outdoor storage container sales, rental, service, repair – Self-service storage – Tow and taxi lots; Public utility; and, Government facilities, public parks, public transit shelter. (3) Electrified fences are permitted in all zones in conjunction with Governmental facility uses. (24) Other than as stated in subsection (1) of this section, an electrified fence must meet the following requirements, or equivalent standards, as determined by the director: (a) be located at least 186 inches inside of another wood fence or solid wall at least 6 feet in height if the electrified fence is within 20 feet of any property line;. (b) be no taller than ten (10) feet in height; (c) be constructed or installed in conformance with industry standards; (d) be energized not to exceed 12 volts DC; and, (e) provides safe access for emergency responders. Ordinance, at 62–63. Prior to the Ordinance, electrified fences in the City were only permitted to contain large domestic animals. The Ordinance amended existing code to: (1) expand the uses and zones within the City where electrified fences are permitted; (2) specify that electrified fences would only be allowed in conjunction with certain uses within the newly expanded zones; and (3) 1 See City Ordinance No. 22-932, available at https://cfwdms1.cfw.local/WebLink/ElectronicFile.aspx?docid=895383&dbid=1&repo=CityOfFederalWay. 3 create additional regulations applicable to electrified fences in the newly expanded zones.2 One of the additional regulations requires that all electrified fences which do not separate agricultural uses “be located at least 6 inches inside of another fence or solid wall at least 6 feet in height if the electrified fence is within 20 feet of any property line” (“Second Fence Requirement”). Id.; FWRC 19.125.130(4)(a). Significant public comment on the Ordinance was received and considered by the City at a public hearing before the City’s Planning Commission, as well as in public meetings before the City’s Land Use and Transportation Committee and Council. See Id. at 3 (detailing procedural history of Ordinance). Donald McLellan, on behalf of Amarok, a company specializing in full- perimeter electrified fencing,3 provided several comments on the proposed Ordinance specific to the proposed electrified fence regulation amendments.4 No person legally challenged the Ordinance after its adoption. B. Permitting History. On June 9, 2022, Amarok submitted a building permit application (“Building Permit Application”) to construct an electrified fence in the CE zone at 1910 S 344th Street, Federal Way, WA, under City File No. 22-102589-CO. The Building Permit Application sought to permit a ten- foot-high electrified fence six to twelve inches inside the existing non-electrified six-foot-high chain link fence, which is generally located on the property boundary.5 In other words, the Applicant proposed to locate a large portion of the ten-foot-high electrified fence approximately one foot from the property line. On June 16, 2022, City Senior Planner Jim Harris provided technical review comments on the Building Permit Application to the Applicant via email (“Technical Comments”). The Technical Comments noted that fences over six feet tall must be located outside of required yards—also known as setback areas—under FWRC 19.125.160(5). The Technical Comments further provided that the applicable setbacks were fifteen feet from all side and rear property lines, and twenty feet from the front property line. Based on the setbacks applicable to fences over six feet in height, the Technical Comments requested revision of the Building Permit Application to either relocate the electrified fence consistent with the applicable setbacks, or lower the electrified fence height to six feet or lower—thus negating the need for compliance with the side and rear setbacks. 2 Id. at 62–63. 3 See AMAROK, Solar Powered Electric Fences & Systems, www.amarok.com. 4 Amarok’s comments were generally supportive of the proposed Ordinance, but suggested some modifications which ultimately were not adopted in the final Ordinance. 5 Some portions of the existing fence on the north and east of the site are located further from the boundary line. 4 C. Request for Interpretation. In response to the Technical Comments, on June 29, 2022, Amarok submitted a separate application, City File No. 22-102883-AD, requesting a formal code interpretation pursuant to FWRC 19.50, Code Interpretations, regarding the applicability of setback requirements to electrified fences.6 As further clarified on July 18, 2022 (“Interpretation Request”), Amarok argues the newly-amended code “allow[s] for the installation of electric fences pursuant to ANSI and IEC 60335-2-76 standards and without encumbrances of landscaping, setbacks, and other zoning restrictions on fences as these requirements would already be met by virtue of a perimeter fence already being in place.” Interpretation Request, at 1–2. Essentially, Amarok argues that the City should determine fence setbacks applicable to fences over six feet in height do not apply to electrified fences in any permitted zone as a result of the newly-amended code. As provided in FWRC 19.50, this code interpretation is issued by the Director of Community Development in response to Amarok’s request. See FWRC 19.50.040. II. ANALYSIS A. Standard of Review and Decisional Criteria. Under FWRC, a code interpretation decision shall be based on: (a) The defined or the common meaning, as applicable, of the words in the provision; (b) The general purpose of the provision as expressed in the provision; and (c) The logical or likely meaning of the provision viewed in relation to the comprehensive plan, this title, the Federal Way Revised Code as a whole, or other plans and studies prepared or adopted by the city. FWRC 19.50.040(2). Additionally, in determining the meaning of a municipal ordinance, the “same rules of statutory construction apply…as to the interpretation of state statutes.” Seattle Hous. Auth. v. City of Seattle, 3 Wn. App. 2d 532, 538–39, 416 P.3d 1280 (2018) (internal quotations omitted). The fundamental principle of statutory construction is to ascertain and carry out the legislature’s intent, 6 Because Amarok elected to pursue an application for a code interpretation prior to continuing with the Building Permit Application, the City is treating the code interpretation as unrelated to a land use or subdivision application for the purposes of FWRC 19.50.050. See id. As a result, this code interpretation is issued and noticed independently from any future decision on the Building Permit Application, as opposed to together with a decision on the Building Permit Application. See FWRC 19.50.050(1). 5 and “if the meaning of a statute is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Id. Plain meaning is derived from the “ordinary meaning of words, the basic rules of grammar, and the statutory context.” Id. (citing HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d 444, 451 (2009)). B. The Plain Language of the FWRC’s Setback Regulations Demonstrates that Electrified Fences over Six Feet in Height are Not Exempt from Setback Requirements Unless They Separate Agricultural Uses and Are Intended to Contain Large Domestic Animals. i. The regulations in FWRC pertaining to setbacks generally apply to all structures including fences, unless otherwise exempted. Under FWRC, required yards—also known as setbacks7—prescribe the “minimum required distance between a structure and a specific line, such as a property line…that is required to remain free of structures.” FWRC 19.05.180. General setback requirements are contained in Chapter 19.125 FWRC, Article III, “Yard Requirements.” See FWRC 19.125.152–160. Specific setbacks applicable to each permitted use are contained in the use tables in FWRC Chapters 19.190–240. See FWRC 19.125.152. As a general matter, “no improvement or structure may be in a required yard” unless it is specifically exempt from setback requirements under FWRC 19.125.160, or specifically allowed to be located in a required yard elsewhere in Title 19 FWRC. See FWRC 19.125.160 (containing list of exemptions from general prohibition on improvements or structures being located in a required yard); see also FWRC 19.125.156 (providing that other sections of the title “contain[] specific regulations regarding what may be in…required yards in certain instances…[and that w]here applicable, those specific regulations” apply). Fences are both structures and improvements as defined in code. FWRC 19.05.190 (defining structure as “a combination or arrangement of material for use, occupancy, or ornamentation); FWRC 19.05.090 (defining improvement as “any structure or manmade feature”). Thus, unless a particular fence is exempt from setback requirements under FWRC 19.125.160, or specifically permitted in required yards elsewhere in Title 19 FWRC, setback provisions apply and the improvement or structure cannot be located within the required yard. ii. The FWRC explicitly exempts fences six feet and under from setback requirements, as well as electrified fences of any height separating agricultural uses. The FWRC does contain specific exemptions from setback requirements pertinent to fences. Notably, “[f]ences or railings not over six feet in height may be located in required yards 7 The FWRC uses the terms “yard” and “setback” interchangeably, as does this code interpretation. See FWRC 19.05.180 (specifying “[y]ards are also known as setbacks”). 6 subject to [applicable] fence regulations.” FWRC 19.125.160(5) (emphasis added). Similarly, “[e]lectrified fences separating agricultural uses and intended to contain large domestic animals may be located anywhere on the subject property, including on the property line.” FWRC 19.125.130(1) (emphasis added). Read together, the plain language of these provisions exempts the following categories of fences from setback requirements: (1) all fences six feet or shorter— whether electrified or not; and (2) all electrified fences separating agricultural uses and intended to contain large domestic animals—regardless of height. iii. The Council’s omission of language similarly exempting electrified fences over six feet in height not associated with agricultural uses from setback requirements confirms such fences are not exempt from setback requirements. Just as plainly, however, nothing in FWRC 19.125.130 or elsewhere in code exempts electrified fences over six feet in height and not associated with agricultural uses from setback requirements. The lack of such a provision is telling, as legislative omission of language in one portion of a statute where it was expressly included in another must generally be interpreted as intentional. See Protect Zangle Cove v. Dep’t of Fish and Wildlife, 17 Wn. App. 2d 856, 876 (2021) (where a statute designates a list of things upon which it operates, an “inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature”); see also State v. Moses, 145 Wn.2d 370, 375 (2002) (the “silence of the legislature” is often telling and determinative). Indeed, courts will not supply omitted language in interpreting a statute even when the “omission is clearly inadvertent, unless the omission renders the statute irrational.” In re Pers. Restraint of Acron, 122 Wn. App. 886, 891 (2004). Prior to the Ordinance, the FWRC already contained a lengthy list of exemptions from setback requirements in FWRC 19.125.160, and already contained an exemption specific to a certain subset of electrified fences. The recent Ordinance’s omission of a similar exemption specific to the very electrified fences the new Ordinance permitted for the first time is dispositive. See Zangle Cove, 17 Wn. App. At 876; State v. Moses, 145 Wn.2d at 375. The Council could have provided a blanket allowance for electrified fences to be located anywhere on the property regardless of height, but it did not. As a result, electrified fences over six feet in height must comply with standard fence setbacks under the FWRC unless they separate agricultural uses and are intended to contain large domestic animals. FWRC 19.125.130(1). C. The Requirement that Electrified Fences Within Twenty Feet of a Property Line be Located Six Inches or More Inside Another Six-Foot-High Fence or Wall Does Not Conflict with Setback Requirements Generally Applicable to Fences. Amarok also appears to suggest that the Ordinance’s new regulations applicable to electrified fences which do not separate agricultural uses, and in particular the Second Fence Requirement, excuse compliance with regular setback requirements. See FWRC 19.125.130(4)(a) 7 (codification of requirement).8 Presumably, Amarok believes the new Second Fence Requirement is in conflict with general setback requirements and is the more specific and recently enacted statute—and therefore controlling. See Gorman v. Garlock, Inc., 155 Wn.2d 198, 210 (2005). A close examination of the Second Fence Requirement, however, shows there is no conflict between that provision and general setback requirements. Statutes are properly read “as complementary, rather than in conflict with each other.” Cossel v. Skagit Cnty., 119 Wn.2d 434, 437 (1992). Provisions that govern “different aspect[s] of the same subject matter” or “differ in purpose and scope” do not conflict. Johanson v. Centralia, 60 Wn. App. 748, 750 (1991); Peninsula School v. Employees, 130 Wn.2d 401, 408–09 (1996). The Second Fence Requirement regulates placement of electrified fences by requiring any electrified fence within twenty feet of a property line be located at least six inches inside another fence or wall six feet or more in height. FWRC 19.125.130(4)(a). Put another way, it requires that if an electrified fence is within twenty feet of any property line it must have an exterior fence located outside the electrified fence. Id. But the Second Fence Requirement says nothing about the distance or required setback applicable to electrified fences at all. It does not mandate the ability to place an electrified fence within twenty feet of any property line, it merely requires a second fence in those situations where the electrified fence is actually within twenty feet of the property line. There are many situations where an electrified fence could legally be within twenty feet of the property line, such as if the electrified fence were six feet in height or less, or if the electrified fence were ten feet high and outside of the fifteen-foot side yard setback, yet within twenty feet of the property line. See FWRC 19.125.160(5). In other words, the Second Fence Requirement and general setback requirements both regulate electrified fences, but they regulate “different aspect[s] of the same subject matter” and “differ in purpose and scope.” Johanson, 60 Wn. App. at 750; Peninsula School, 130 Wn.2d at 408–09 (1996). Accordingly, the Second Fence Requirement is a complementary regulation which can be applied harmoniously with existing setback requirements, and there is no conflict between the new regulations adopted in the Ordinance and previously existing setback requirements applicable to electrified fences. III. CONCLUSION Under the plain language of the operative provisions, property setbacks generally applicable to fences over six feet high are also applicable to electrified fences over six feet high, unless the electrified fences separate agricultural uses and are intended to contain large domestic animals. Nothing in newly-amended FWRC 19.125.130 suggests otherwise because the 8 See also Interpretation Request, at 1–2 (arguing that the new Ordinance “allow[s] for the installation of electric fences pursuant to ANSI and IEC 60335-2-76 standards and without encumbrances of landscaping, setbacks, and other zoning restrictions on fences as these requirements would already be met by virtue of a perimeter fence already being in place”) (emphasis added). 8 provisions in that section are complementary regulations which do not conflict with general regulation of fence setbacks elsewhere in FWRC. As a result, electrified fences over six feet high are not exempt from compliance with standard fence setbacks under the FWRC unless they separate agricultural uses and are intended to contain large domestic animals.